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Of floors and ceilings

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The defendant pleads guilty to firing a gun into a house, which carries a prison term of 5 to 10 years.  If the judge finds by a preponderance of the evidence that the crime was committed with a racial bias, he can add anywhere from an additional 1 to 5 years to the sentence.

The defendant pleads guilty to firing a gun into a house, which carries a prison term of 5 to 10 years.  If the judge finds by a preponderance of the evidence that the crime was committed with a racial bias, the minimum sentence he can impose is 7 years. 

Is there a difference between those two situations?  Back in 2000, in Apprendi v. New Jersey, the Supreme Court held that the first was impermissible; allowing the judge to increase the sentence beyond what it otherwise would be based on findings he made violated a defendant's 6th Amendment right to jury trial.  Two years later, in Harris v. US, the Court held that the second scenario was permissible:  since the finding affected only the minimum sentence, not the maximum sentence, there was no violation of the 6th Amendment.

On Monday, the Supreme Court in Alleyne v. US held that this didn't make sense, and overruled Harris.

Alleyne had been charged with using a firearm in a crime, which allows an additional prison sentence up to life, and a mandatory minimum of five years.  But that mandatory minimum becomes seven years if the firearm is "brandished," and ten if it's discharged.  The jury had found Alleyne guilty of the offense; the judge imposed the seven-year minimum because he agreed with the presentence report's determination that Alleyne had brandished the gun.  (This was actually the precise factual situation presented in Harris.)

It's not a clear call that this violates Apprendi, as reflected by the 5-4 split in the decision.  Harris was based on the distinction between a statutory ceiling and a statutory floor:  Apprendi was directed at the situation where the maximum sentence was exceeded.  (Blakely v. Washington later clarified Apprendi by ruling that the "statutory maximum" was not necessarily the maximum sentence specified by the statute, but the maximum that could be imposed solely on the basis of facts found by a jury or admitted by the defendant, other than a prior conviction).  The majority (also five members of the Court) in Harris found that increasing the mandatory minimum didn't violate Apprendi, because the maximum sentence wasn't affected:  although the judge had to give Harris a sentence of 7 years, as opposed to 5, he could've given him anything, including life.  Harris also dealt extensively with the difference between sentencing "elements" and sentencing "factors," concluding that the right to jury trial applied only to the former, and that whether a firearm was brandished was a factor, not an element.

But you say tomayto, I say tomahto:  the net result is that a defendant is doing more time than he otherwise could, solely because of facts found by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt.  Thomas' opinion for the majority (the "liberal" bloc joined in) observed that "a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed," and that "it is impossible to dispute that facts increas­ing the legally prescribed floor aggravate the punishment," the same as facts which increase the maximum penalty.  The bottom line is simple:  "When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury."

The interesting vote here was Breyer's.  He's long been an opponent of the Apprendi line, probably because he foresaw that it would result in the Court's decision in Booker v. US, which rendered the Sentencing Guidelines advisory instead of mandatory; Breyer was one of the architects of the Guidelines.  He concurred in Harris, although noting there the logical inconsistencies with Apprendi.  Those inconsistencies became too much; he votes in Alleyne to overrule Harris, while still expressing his disagreement with Apprendi.  Go figure.

Given that sentencing is the most important aspect of the criminal justice system, it's hard to overstate the significance of Apprendi and its progeny.  Alleyne represents a significant extension of that doctrine.  Minimum mandatory sentences have become the focus of great criticism.  As Breyer has noted, they sabotage the very idea of the Sentencing Guidelines -- they're based not on empirical studies of the appropriate relation between crime and punishment, as the Guidelines are (at least in theory), but are instead little more than legislators' attempt to appear tough on crime.  They also bestow extraordinary power on Federal prosecutors, with the result being that prosecutors, not judges, fix the punishment by deciding which offenses to charge.  Alleyne won't solve the problems with mandatory minimums, but at least it might mitigate the damage that they do.

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I'm traveling back to Pennsylvania this weekend to attend my 45th high school reunion.  Haven't seen or talked with anybody back there in 25 years.  Boy, that'll be a time.  Anyway, no Briefcase tomorrow or on Monday.  See you back here on Tuesday.


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